Filed: Mar. 18, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 3-18-2008 USA v. Throckmorton Precedential or Non-Precedential: Non-Precedential Docket No. 06-3823 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Throckmorton" (2008). 2008 Decisions. Paper 1431. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1431 This decision is brought to you for free and open access by the Opinions of the
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 3-18-2008 USA v. Throckmorton Precedential or Non-Precedential: Non-Precedential Docket No. 06-3823 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "USA v. Throckmorton" (2008). 2008 Decisions. Paper 1431. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1431 This decision is brought to you for free and open access by the Opinions of the ..
More
Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-18-2008
USA v. Throckmorton
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-3823
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"USA v. Throckmorton" (2008). 2008 Decisions. Paper 1431.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1431
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-3823
UNITED STATES OF AMERICA
v.
THOMAS EDWARD THROCKMORTON
Appellant
On Appeal From the United States
District Court
For the Western District of Pennsylvania
(D.C. Crim. Action No. 05-cr-00219)
District Judge: Hon. Terrence F. McVerry
Argued January 10, 2008
BEFORE: FISHER, HARDIMAN and
STAPLETON, Circuit Judges
Opinion Filed: March 18, 2008
Robert L. Eberhardt (Argued)
Office of the United States Attorney
700 Grant Street - Suite 4000
Pittsburgh, PA 15219
Attorney for Appellee
Paul D. Boas (Argued)
Law & Finance Building - 5th Floor
429 Fourth Avenue
Pittsburgh, PA 15219
Attorney for Appellant
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Thomas Throckmorton appeals his conviction for possession with intent to
distribute one hundred kilograms or more of marijuana. We will affirm.
I.
Because we write only for the parties who are familiar with the factual context
and procedural history of the case, we set forth only those facts necessary to our analysis.
On June 17, 2005, Robert Gailey was apprehended at a mid-Missouri drug
interdiction checkpoint while in possession of 233 pounds of marijuana. After Gailey
was assured that his brother George, who played a nominal role in the operation, would
not be prosecuted, he admitted his involvement in an interstate marijuana trafficking
operation and agreed to help authorities build a case against its ringleader, Thomas
Throckmorton.
To this end, law enforcement officers fitted Gailey with a personal recording
device and instructed him to deliver the marijuana to Throckmorton. Gailey complied,
2
and after he arrived at Throckmorton’s place of business, the pair engaged in a
conversation that was highly incriminating – at one point in the discussion, Throckmorton
even asked Gailey to return to Arizona and retrieve another 720 pounds of marijuana.
This conversation was recorded in its entirety by the device that Gailey was wearing.
Based on the contents of that conversation and the fact that he had accepted
delivery of 233 pounds of marijuana, Throckmorton was arrested and charged with
trafficking a hundred or more kilograms of marijuana. Throckmorton elected to go to
trial, primarily arguing that he was wholly innocent. Alternatively, he argued that Gailey
had intended to retain at least thirteen pounds of the marijuana for his own personal use
and distribution, which meant that Throckmorton had not trafficked one hundred or more
kilograms of the substance. The jury found him guilty as charged. Subsequently, he was
sentenced to eighty-seven months of incarceration and five years of supervised release.
This appeal followed.1
II.
Although we will affirm Throckmorton’s conviction because we believe the errors
that occurred during his trial were harmless, two rulings by the District Court merit
additional discussion.
A.
First, we are troubled by the District Court’s decision to admit Trooper Edward
1
We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291.
3
Walker’s testimony regarding what the accounting records kept by drug dealers, called
owe-sheets, generally look like.
A review of the transcript makes it clear that when Walker took the stand, he
intended to testify that some of the documents seized during a search of Throckmorton’s
place of business were owe-sheets. The defense objected, arguing that because the
government failed to furnish any summary of his testimony, as required by Federal Rule
of Criminal Procedure 16(g), Walker could not be called as an expert, and further that as a
lay witness, any information he offered on this topic amounted to impermissible opinion
testimony. The District Court agreed, saying, “[Walker] is not going to be permitted to
testify to his opinion, lay, expert, or otherwise, relative to the documentation that has been
contested and whether that documentation constitutes [owe-sheets] and/or is otherwise
reflective of possession with intent to deliver.” (App. 760a.)
The government complied with the letter, but not the spirit, of this ruling by asking
Walker to describe what owe-sheets generally “looked like.” After the defense’s
objection to the question was overruled, Trooper Walker testified:
“An [owe]-sheet is a piece of paper which contains usually [a] first name . .
. and what is owed to them. They keep these sheets because drug dealers
don’t hand out receipts or bills or anything like that. They keep these sheets
on them in order to keep track of who owes what . . .”
(App. 804a.) Beyond being a general description of an owe-sheet, it was also a fairly
accurate description of the documents seized from Throckmorton’s business, which were
later published to the jury.
4
As the Advisory Committee’s notes on Federal Rule of Evidence 701 state, “the
distinction between lay and expert witness testimony is that lay testimony results from a
process of reasoning familiar in everyday life, while expert testimony results from a
process of reasoning which can be mastered only by specialists in the field.” Within this
context, Walker’s testimony was not limited to facts discovered during this particular
investigation; instead, he brought the wealth of his experience as a narcotics officer to
bear as he opined on the general format of an owe-sheet, which means he testified as an
expert. E.g., United States v. Oriedo, 498 F.3d 593, 602-603 (7th Cir. 2007); United
States v. Garcia,
413 F.3d 201, 216 (2d Cir. 2005). As a consequence, the District Court
should not have permitted Walker to answer this question.
B.
We also believe that the District Court erred in refusing to let Throckmorton cross-
examine Robert Gailey about the period of incarceration he would be facing had he not
cooperated with authorities.
Although the District Court retains “wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits on . . . cross-examination based on
concerns about, among other things, harassment, prejudice, confusion of the issues, the
witness’ safety, or interrogation that is repetitive or only marginally relevant,” this power
is not without boundaries. Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986).
Instead, any such limitation is reviewed for abuse of discretion, which turns on “(1)
5
whether the limitation significantly limited the defendant’s right to inquire into a
witness’s motivation for testifying; and (2) whether the constraints imposed fell within
the reasonable limits that a district court has the authority to impose.” United States v.
Mussare, 405 F.3d 161, 169 (3d Cir. 2005).
In United States v. Chandler, a witness testified that he expected the government
to move for a reduced sentence in exchange for his testimony, but the defendant was not
permitted to inquire about how much time the witness would have been facing absent his
cooperation. 326 F.3d 210, 222 (3d Cir. 2003). As the Chandler court explained, this
amounted to a significant limitation on the defendant’s right to examine a witness’
motives for testifying because her “mere acknowledgment that she hoped that the
government would move for a lesser sentence did not adequately enable a jury to evaluate
her motive to cooperate.”
Id.
Throckmorton’s case is nearly identical. Robert Gailey merely acknowledged that
by testifying he believed he would be offered some leniency, but was never asked to
provide the jury with any estimate of the punishment he would otherwise be facing. And,
just as in Chandler, this deprived the jury of any frame of reference to evaluate his motive
to cooperate. For this reason, we believe that when the District Court prevented any
cross-examination on this topic, it significantly limited Throckmorton’s right to inquire
into Gailey’s motivation for testifying. See
id.
Consequently, the inquiry shifts to “whether the constraints fell within the
6
reasonable limits that the District Court has the authority to impose.” United States v.
Harris, 471 F.3d 507, 513 (3d Cir. 2006). This second step calls for a balancing test,
which in this case involves weighing the risk of prejudice to Throckmorton against the
risk of jury nullification which the District Court sought to minimize. The issue thus
posed is relatively easy to resolve, as this Court has previously explained that any interest
in preventing nullification “ha[s] to yield to [the defendant’s] constitutional right to probe
the possible biases, prejudices, or ulterior motives of the witnesses against [him].”
Chandler, 326 F.3d at 223.
Because we are satisfied that the District Court imposed a significant limitation on
Throckmorton’s right to cross-examine Gailey, and are further satisfied that this
constraint was not within the reasonable limits that a district court has the authority to
impose, we conclude that the District Court abused its discretion when it barred
Throckmorton from inquiring as to the period of incarceration that Robert Gailey would
be facing absent his cooperation.2
2
Throckmorton advances a number of additional claims that do not entitle him to
relief. Specifically, Throckmorton argues that the District Court erred in refusing to
instruct the jurors on the lesser included offense of intent to distribute an unspecified
amount of marijuana; in refusing to provide an accomplice instruction pertaining to the
testimony provided by Robert Gailey’s brother, George; and in permitting the government
to provide jurors with an unofficial transcript of the taped conversation between
Throckmorton and Gailey. We have reviewed all of these claims and find them to be
without merit. There was no evidence to support a conclusion that Throckmorton and
Gailey had intended to split the marijuana in the truck; the District Court adequately
instructed the jury on the evaluation of the credibility of witnesses in light of their self-
interest; and the submission of the transcript as an aid to the jury under proper instruction
7
C.
However, in considering the impact of this error on the proceedings, as well as the
District Court’s erroneous decision to let Trooper Walker testify to the general
appearance of an owe-sheet, we can say with confidence that both errors were harmless in
the context of the record as a whole. The evidence was overwhelming: Throckmorton
had accepted delivery of 233 pounds of marijuana, and while doing so, was caught on
tape having an extensive discussion about the trafficking operation. Further, at trial, not
only did Robert Gailey testify to Throckmorton’s involvement, so did his brother George,
who had seen evidence of the operation first-hand. Accordingly, we have no doubt that
the jury’s verdict would have remained the same even in the absence of these errors, and
therefore conclude that they were harmless. E.g., United States v. Casoni, 950 F.2d 893,
902 (3d Cir. 1991); United States v. Korey,
472 F.3d 89, 96 (3d Cir. 2007).
III.
For these reasons, the judgment of the District Court will be affirmed.
was clearly permissible.
8
